2017 (4) TMI 729 - HC - FEMA

Enforcement of a foreign award - express representations were made that the transactions were in compliance with the applicable laws it is now contended that the SHA was only a device to circumvent the provisions of FEMA - Held that - The conduct and the stand of Unitech can most charitably be described as plainly dishonest. This court is of the view that permitting Unitech to prevail on such contentions to resist the enforcement of Award would plainly amount to rewarding dishonesty and would be manifestly unjust. Curiously no such contentions were advanced by Unitech before the Arbitral Tribunal. Further Unitech has also failed to indicate any credible explanation for not urging the same before the Arbitral Tribunal. Thus Unitech cannot be permitted to raise such contentions at this stage. It is also necessary to bear in mind that the present proceedings are for enforcement of inter se rights between Cruz City and Unitech and Cruz City cannot be precluded from enforcing its rights which fall within the ambit of private international law. The contentions advanced by Unitech are plainly an afterthought as no such contentions were advanced before the Arbitral Tribunal. Indisputably the Arbitral Tribunal was the forum of choice and had jurisdiction to decide all disputes between the parties. The Keepwell Agreement was subject to Indian laws and Unitech had full opportunity to challenge the validity of the Keepwell Agreement before the Arbitral Tribunal. However Unitech having failed to do so this court finds no reason to entertain such contentions to resist enforcement of the Award. There is also much merit in Mr Mukopadhaya s contention that Unitech had deliberately refrained from taking any such plea before the Arbitral Tribunal as that may have entitled Cruz City to claim further damages. It is apparent that Unitech has also not provided any reason why such defences were not raised before the Arbitral Tribunal. In the circumstances this court has little hesitation in finding that the contentions now raised are an abuse of the process of this court and therefore must be rejected. This is a fit case where principles of issue estoppel ought to be applied notwithstanding the grounds available under Section 48(1) of the Act. Even if it is accepted that Burley s business was not bonafide Unitech would be liable to suffer the consequences that would follow under FEMA but Unitech cannot escape its liability to Cruz City. Insofar as the public policy of India is concerned the same can be adequately addressed while considering the question of regulatory compliances at the time of remitting the funds recovered from Unitech. When considered in the context of public policy it would be more pernicious and destructive of the rule of law to permit Unitech to escape its obligations and avoid the Award in comparison to enforcing it. Unitech s contention that structure contemplated under the Keepwell Agreement read with the SHA provided an assured return at a predetermined rate to Cruz City and this was a flagrant violation of FEMA and Regulations made thereunder is also bereft of merit. The Put Option provided to Cruz City under the Keepwell Agreement could be exercised only within a specified time and was contingent on the Santacruz project not being commenced within the prescribed period. This was not an open ended assured exit option as is sought to be contended by Unitech. Cruz City had made its investment on a representation that the construction of the Santacruz Project would commence within a specified period. Plainly if the construction of the Santacruz project had commenced within the specified period - that is by 17.07.2010 - Cruz City would not be entitled to exercise the Put Option for exiting the investment. Further the Put Option could only be exercised within a fixed time period of 180 days and the said option would be lost thereafter. The reliance placed by Unitech on the RBI circulars dated 09.01.2014 and 14.07.2014 is also misplaced. In terms of RBI s circular dated 09.01.2014 optionality clauses granting assured returns on FDI are proscribed. However it is doubtful whether the said circular would be applicable to cases where a foreign investor founds its claim in breach of contract. Plainly if an investment is made on representations which are breached the investor would be entitled to its remedies including in damages. The aforesaid circulars proscribe assured return instruments brought in India under the guise of equity. However in the present case Cruz City is only seeking to enforce its obligations against Burley an overseas entity. Even if it is accepted that the Keepwell Agreement was designed to induce Cruz City to make investments by offering assured returns Unitech cannot escape its liability to Cruz City. Cruz City had invested in Kerrush on the assurances held out by Unitech and notwithstanding that Unitech may be liable to be proceeded against for violation of provisions of FEMA the enforcement of the Award cannot be declined. As argued the Keepwell Agreement and the SHA were only a device to overcome the provisions of FEMA is not entitled to raise this plea for the reasons as stated hereinbefore. No such plea was raised before the Arbitral Tribunal. It is plainly an afterthought and an abuse of the process of this court. Secondly the contention is premised on an erroneous assumption that the Keepwell Agreement provides for an assured return in violation of FEMA. As stated above the Put Option was relevant only if the construction of the Santacruz Project was not commenced within the specified period of two years. Cruz City had no assurance of exit at a pre-determined return under the Keepwell Agreement in the event the execution of the project was commenced on schedule. And thirdly if Cruz City has been induced to make an investment on a false assurance of the Keepwell Agreement being legal and valid Unitech must bear the consequences of violating the provisions of Law but cannot be permitted to escape their liability under the Award. In view of the above the objections raised by Unitech under Section 48 of the Act against enforcement of the Award are rejected.

Summary

Issues Involved:
1. Whether enforcement of the foreign award should be refused under Section 48(1)(b), 48(1)(c), and 48(2)(b) of the Arbitration and Conciliation Act, 1996.
2. Whether the award exceeds the scope of submission to arbitration.
3. Whether Unitech had proper notice and opportunity to present its case.
4. Whether the enforcement of the award is contrary to the public policy of India, particularly in relation to the Foreign Exchange Management Act, 1999 (FEMA).

Issue-wise Detailed Analysis:

1. Refusal of Enforcement under Section 48(1)(b), 48(1)(c), and 48(2)(b):
The court examined whether the enforcement of the foreign award should be refused under these sections. Section 48 of the Act is a statutory expression of Article V of the New York Convention, allowing courts to refuse enforcement of a foreign award on specified grounds. The court found that the grounds for refusal encompass a wide spectrum of acts and factors, and while it may be imperative to refuse enforcement in some cases, in others, it may be unjust to do so. The court emphasized that even if grounds under Section 48 are established, the court has discretion to enforce the award if there are good reasons founded on settled principles of law.

2. Scope of Submission to Arbitration:
Unitech contended that the award included decisions on matters beyond the scope of submission to arbitration. The court found that the issue of whether Burley and Unitech had breached their obligations under the Keepwell Agreement, and whether Unitech was obliged to make payment equivalent to the put option price, was squarely the subject matter of arbitration. The arbitral tribunal had jurisdiction to decide these issues, and Unitech's contention that the award was beyond the scope of reference was unmerited.

3. Notice and Opportunity to Present Case:
Unitech argued that it did not have proper notice or opportunity to present its case. The court found that Unitech had proper notice of the appointment of the arbitral tribunal and the arbitral proceedings. Cruz City had duly notified Unitech of its demand for payment of the consideration for the subject shares of Kerrush. The court concluded that Unitech had contested the demand and had an opportunity to present its case. The contention that Unitech had no opportunity to meet the relief awarded or that the award was beyond the reference was found to be an afterthought.

4. Public Policy and FEMA:
Unitech contended that the enforcement of the award would be contrary to the public policy of India as it contravenes the provisions of FEMA. The court held that a violation of any provision of FEMA does not ipso jure offend the public policy of India. The term "public policy" in the context of enforcement of a foreign award must be construed narrowly, and enforcement would be refused only if it is contrary to the fundamental policy of Indian law, the interests of India, or justice or morality. The court found that the Keepwell Agreement and the SHA did not provide an assured return in violation of FEMA, and even if they did, Unitech could not escape its liability to Cruz City. The court emphasized that Unitech had made unambiguous representations regarding compliance with applicable laws and could not now contend otherwise.

Conclusion:
The objections raised by Unitech under Section 48 of the Act against the enforcement of the award were rejected. The court found that Unitech had proper notice and opportunity to present its case, the award was within the scope of submission to arbitration, and enforcement of the award did not violate the public policy of India. The court directed that the matter be listed for further consideration on 20.04.2017.